Interstate Travel and Marriage

As Professor Idleman alerted our Constitutional Law course last year, there’s nothing like the posture of a criminal defendant challenging a law’s constitutionality. Compare Bowers v. Hardwick, 478 U.S. 186 (1986) (plaintiff who was charged but not indicted under Texas’ sodomy laws unsuccessfully sues attorney general in action seeking to declare laws unconstitutional) with Lawrence v. Texas, 539 U.S. 558 (2003) (criminal defendants’ charges expunged when sodomy laws declared unconstitutional). Sure the passage of time had more than a little to do with the diverging outcomes in Bowers and Lawrence — but the criminal defense posture didn’t hurt.

A criminal defendant and a plaintiff encounter necessarily inconsistent judicial receptions. Put simply, the claim of one who faces the cruel stigma of criminality — where his or her prospective jail time flows in part from a voter-initiated constitutional amendment — will receive a more exacting hearing than a civil complaint filed by an unjailed plaintiff, disgruntled on the losing side of that same amendment’s enactment.

Because Lawrence declared unconstitutional all sodomy laws, however, how could a gay American be criminalized?

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Recommended Legal Writing Reads from Judge Easterbrook

This past October, as a Judicial Intern at the United States Court of Appeals for the Seventh Circuit, I had the pleasure of attending an informal, reoccurring brown bag lunch held among the court’s clerks. We gathered in a conference room down the hall from the Dirksen Federal Building’s second-floor cafeteria to hear this session’s guest speaker—Chief Judge Frank H. Easterbrook—lecture informally on legal writing. The judge shared some of his experiences (e.g., his decision-making process*) and his must-read books for legal writers.

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